Decision No. 10 /02

 

Reference No. HRRT 29/01

 

BETWEEN                                                                          ROBERT FRANCIS

                                                                                            PLUMTREE

                                                                                            Plaintiff

 

AND                                                                                   HER MAJESTY'S

                                                                                            ATTORNEY GENERAL

                                                                                            ON BEHALF OF THE

                                                                                            NEW ZEALAND

                                                                                            DEFENCE FORCE

                                                                                            Defendant

 

BEFORE THE HUMAN RIGHTS REVIEW TRIBUNAL

 

R D C Hindle ‑ Chairperson

G Cook                                                                                                                   ‑ Member

P McDonald                                                                                                            ‑ Member

 

HEARING:

 

13 June 2002 (Wellington)

1 July 2002 (Auckland)

 

APPEARANCES

 

Mr Plumtree ‑ plaintiff

Ms M Laracy for defendant

Ms M Donovan for Privacy Commissioner

 

DECISION

 

A          INTRODUCTION

 

Background

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Mr Plumtree joined the New Zealand Defence Force ('the army') in March 1964. His official service history shows that he left the army in 1968. During that time, he served in Vietnam. He is entitled to the Vietnam Medal and the Vietnam Campaign Medal.
 

2. Mr Plumtree has complaints about the way he was treated by the army while he was engaged in it. For example, he gave evidence that:

 

(a) He did not receive proper basic training. His statement of service shows that he attended basic recruits’ training course number 27 from 19 March 1964 to 28 May 1964. However on 4 April 1964 he was admitted to the army hospital at Waiouru with a dislocated right elbow following an accident that occurred while he was on leave. He was discharged on 10 April 1964 but he still had only limited movement in his arm. It seems that as a result he was transferred to a non‑active training course. His Unit Personal Record Card shows that he was “deemed” to have qualified on a basic recruits’ course. In evidence Mr Plumtree said that, as a result of the deficiency in his basic training, by the time he came to serve in Vietnam he did not know how to fire the type of pistol with which he was issued (and which he said he had to use) in Vietnam.

 

(b)   Mr Plumtree said that he was paraded through all of Northland towns as far north as Kaitaia, he was running down each main street being pursued by others firing blanks, then falling down pretend shot dead.  He said he believed that sort of “physiological” training was cruel and that not long afterwards he was required to “...function with almost no support at all, more often than not alone unarmed.” In support of these allegations Mr Plumtree produced newspaper clippings dating from August 1966 which described a mock battle performed by the army as a demonstration in Kaikohe including the report that “... Kaikohe’s Raihara St. ‑ Broadway intersection was turned into a battleground on Tuesday afternoon ‑ grenades, rifle and submachine gun fire shattered the quiet day as Viet Cong guerrillas and members of the No. 1 Transport Company exchanged shots. Of course the ‘goodies’ won the (mock) battle and the Viet Cong, who had done their best to ambush a truck, were smoked out by thunder‑flash grenades and beat a hasty retreat down Raihara Street dragging their wounded with them...”

 

(c) At various points in his evidence Mr Plumtree said that he was ordered by an officer to partner a lady to a social function in Taumarunui. Later he spoke of the army arranging a sweetheart to write home to, and said that “... members of the force also assisted an arrangement Of marriage. That flawed legal Family Court Proceedings occurred here in New Zealand, those karmas across the Tasman, and [he] has now  also been deprived of due process according to law, by members of the Federal Judiciary in Australia ‑.

3.  Mr Plumtree said the army ill‑treated him cruelly throughout his service. He felt that the army had failed in what he saw as its legal and moral obligations  to provide him with the support of comrades‑in‑arms and proper training. He said that he has never actually been discharged from the army, and that he ought to be discharged.

4.  The army did not accept any of these allegations, but it did not address them in any detail in the evidence because it was submitted that they are all matters that are outside the jurisdiction of this Tribunal. We agree. Whatever the rights and wrongs of these aspects of Mr Plumtree’s allegations may be, they are not things in respect of which this Tribunal has any power to intervene.

5.  To record Mr Plumtree’s evidence in this summary way will, however, give some sense of the depth of his feeling of victimisation caused by the way in which he sees himself as having been treated by the army. He said that since his departure from the army he has led an unsettled life. He wanted us to know that he has had psychiatric assessment and psychological counselling, including counselling from the Vietnam Veterans’ Counselling Service in Adelaide. Mr Plumtree spoke of matrimonial and family problems that he has suffered and which he plainly sees as having had their genesis in large measure in the way he was treated by the army.

 

Events giving rise to this case

6.  Mr Plumtree has taken his complaints variously to the United Nations, the New Zealand Ombudsman and the Privacy Commissioner in New Zealand. A particular manifestation of Mr Plumtree’s concerns over the years has been a search for his army records, and his efforts to have certain of the records he has had access to corrected.

7.  It will be necessary to deal with the chronology of his requests and the army’s responses later in this decision, but for present purposes it suffices to note that there is evidence of correspondence between Mr Plumtree and the army as early as 1984. Subsequently the Privacy Commissioner became involved. By letter dated 16 October 1998 the Privacy Commissioner informed Mr Plumtree that he had decided to exercise his discretion under section 71(2) of the Privacy Act 1993 (‘the Act’) to discontinue the investigation of the complaint.

8.  It is difficult to trace the exact course of the correspondence because the bundle provided for the hearing was incomplete. It seems that the matter reactivated some time early in 2001. However on 24 July 2001 the Privacy Commissioner repeated that he had decided to discontinue his investigation of the complaints. Mr Plumtree was notified of the possibility of commencing proceedings in this Tribunal.

B          THE CONDUCT OF THE CASE

9.  This case was commenced by a notice of intention to bring proceedings dated 27 July 2001. At that time Mr Plumtree sought orders for disclosure of information, and orders for correction.

 

10. During the pre‑hearing phase there was a meeting between Mr Plumtree and representatives of the army in Rotorua in September 2001. The meeting did not resolve matters but made some progress. Mr Plumtree was shown copies of certain records that had been located. Mr Plumtree said that he was shown four ‘new’ documents (i.e., ones he had not seen before), although subsequently copies of only three documents were sent to him (for convenience we refer to this alleged fourth document as ‘the missing document’). The army said that Mr Plumtree was mistaken, and that he was sent copies of all of the documents that were shown to him that day, and which he had not previously seen or had copies of.

11. As a result of a directions conference by telephone on 25 February 2002 Mr Plumtree was required to particularise his claim and to indicate, preferably by schedule, the documents he was then still seeking; those in respect of which he required some amendment and those in respect of which he said production was delayed.

12. Mr Plumtree then filed a number of documents although regrettably none of them could be described as uncomplicated. The main bundle of documents, for example, was not presented in any organised way. It contained several copies of some documents and yet omitted altogether other documents that Mr Plumtree obviously regarded as important at the hearing. Documents were fragmented within the bundle. For example, Mr Plumtree’s Unit Personal Record Card is a two‑sided card with information on both sides. The front side was at page 95 of the bundle and the reverse side was at page 89. The scope for confusion was compounded by the fact that the documents themselves contain acronyms and abbreviations which may be commonplace in the army but which were not always easy for the uninitiated to follow.

 

13. There was a further pre‑hearing conference by telephone on 27 May 2002. At that time Mr Plumtree confirmed that a document he had filed in late February 2002 entitled ‘Schedule of Documents in Dispute’ would be a convenient summary of the matters he wanted the Tribunal to deal with at the hearing. He also said that he would refer to the material in the bound volumes he had delivered to the Tribunal, an affidavit sworn by him on 21 March 2002 and to the documents attached to his letter of 23 March 2002 to the Tribunal. Mr Plumtree accepted that (aside from the missing document) he had by then received all of the information he had been asking the army to provide.

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14. The minute of the 27 May 2002 conference also records the written evidence and submissions that would be presented by the army at the hearing.

15. The hearing commenced in Wellington at 11.30 am on 13 June 2002. Mr Plumtree’s case occupied most of the day. The army opened its case late in the afternoon. It soon became clear that it would not be possible to complete the evidence before the end of the day. The hearing was adjourned to be

resumed in Auckland as soon as practicable.

16. Before the hearing resumed Mr Plumtree wrote with an objection to the evidence that had been given by Lt. Col. Taylor. We dealt with that objection immediately the hearing resumed in Auckland on 1 July 2002. We were not persuaded that the procedure had been unfair to Mr Plumtree, particularly having regard to the time that had been taken to hear his evidence and deal with the topics covered by him. We were not satisfied that anything Lt. Col.  Taylor said had strayed beyond the realms of relevance in any material way.

 

17. At the end of the hearing on 1 July 2002 the Privacy Commissioner presented a comprehensive written submission which was summarised by Ms Donovan.  The submission was critical of the army’s conduct in a number of respects.  Nothing had been filed in advance of the hearing that might have foreshadowed for the army the attitude likely to be taken by the Privacy Commissioner. Indeed the Privacy Commissioner had earlier exercised the discretion under section 71(2) of the Act to discontinue his investigation of Mr Plumtree’s complaints. He had also exercised the discretion under section 77 of the Act not to refer the matter to the Proceedings Commissioner, but rather to let Mr Plumtree bring the proceedings by himself.

18.       The submission by the Privacy Commissioner took the army by surprise. At Ms Laracy’s request we allowed the army to file a written submission in reply to that filed by the Privacy Commission at the hearing. We also allowed both the Privacy Commissioner and Mr Plumtree an opportunity to respond to the further submissions by the army.

19.       Further submissions were subsequently received from all of the parties. Although not all of the material received from Mr Plumtree was limited to matters of reply we have considered everything that was received, save only for a letter from a Mr Robinson which was in the nature of a character reference for Mr Plumtree.

c                      THE RELEVANT PRIVACY ISSUES

20. The only aspects of Mr Plumtree’s complaints that engage the jurisdiction of the Tribunal are those which relate to the application of Privacy Principles 6 and 7.

21. The relevant part of Principle 6 states:

 

“(1) Where an agency holds personal information in such a way that it can readily be retrieved, the individual concerned shall be entitled ‑

(a) To obtain from the agency confirmation of whether or not the agency holds such personal information; and

(b)   To have access to that information

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The Principle also provides that where access is given then the individual “...shall be advised that, under Principle 7, the individual may request the correction of that information.” The Principle is generally subject to Part IV (Good Reasons for Refusing Access to Personal Information) and Part V (Procedural Provision Relating to Access to and Correction of Personal Information) of the Act.

22. The relevant provisions of Principle 7 entitle an individual in respect of whom an agency holds personal information to request that the agency correct it, and to request that there be attached to the information a statement of any correction sought but not made. The agency’s obligation is to take such steps to correct the information as are reasonable in the circumstances to ensure that the information is accurate, up to date, complete and not misleading having regard to the purposes for which it can lawfully be used. If the agency is not willing to correct information then under Principle 7(3) the individual can supply a statement of the correction sought and the agency must take such steps as are reasonable to attach that statement to the information.

23. There is no doubt that the information held by the army about Mr Plumtree is personal information, and that the army is an agency to which the Act applies.  The army did not argue that any of the information held by it about Mr Plumtree should be withheld from him for any reason. As has been noted, before the hearing Mr Plumtree accepted that (apart from the missing document) he had received all of the information held about him by the army and which he had been asking the army to provide.

24. The real issues therefore have to do with the time it has taken to provide

information to Mr Plumtree, and the correction of information that he has had access to.

D                     CHRONOLOGY

25. It is convenient to begin by setting out Mr Plumtree’s requests for access to information and the army’s responses (the chronology is incomplete because not all documents were put in the evidence).

26. On 3 April 1984 the Ministry of Defence wrote to Mr Plumtree enclosing a statement of his New Zealand army service. It is apparent from the letter that Mr Plumtree had written on 27 March 1984, but since we do not have that letter we do not know what the terms of Mr Plumtree’s request at that time were.

27. It seems that in the years following 1984 Mr Plumtree pursued his concerns through the United Nations and elsewhere, because the next evidence of a request from him to the army for information is contained in a letter written by the army on 27 May 1992. That refers to a letter from Mr Plumtree dated 11 May 1992 which again we were not given a copy of. However the letter from the army stated that it enclosed a copy of Mr Plumtree’s personal file. together with a statement of service and an open letter verifying that Mr Plumtree had Active Service in South Vietnam.

28. At the hearing the army accepted that the letter in 1992 would not have enclosed copies of materials in what was called the ‘mobilisation pack’ which was held on the army file. This is significant, since amongst the documents in the mobilisation pack was Mr Plumtree’s Certificate of Vaccination which was a particular focus of his concern. On the other hand the army says that, save only for the materials in the mobilisation pack and medical records, there is no reason to suppose that everything on Mr Plumtree’s personal file held by the army was not sent to him in 1992.

29. There is evidence of correspondence between Mr Plumtree and the office of ‘the Privacy Commissioner in 1994 concerning efforts made by Mr Plumtree to obtain information from the Department of Social Welfare. That request does not appear to have any direct relevance in this case.

30. On 13 May 1994 Mr Plumtree wrote to the army acknowledging receipt of the materials in 1992 but saying that the army had not included copies of his medical records. He wrote again on 24 May to express some of his concerns about the way he saw himself as having been treated by the army. Medical records were provided by the army undercover of a letter dated 25 May 1994.

31. The next episode in the sequence of correspondence that was put in evidence began on 4 August 1997 when Mr Plumtree wrote to Col. Seymour. That letter did not ask that information be provided, although Mr Plumtree did present Col. Seymour with some of the complaints noted at the beginning of this decision. On 11 August 1997 Col. Seymour responded. His letter suggests that at or about that time Mr Plumtree had also written to the Governor General of New Zealand concerning his complaints. Col. Seymour’s letter indicated that the army had provided advice to the Government about Mr Plumtree’s letter to the Governor General “... to which you will receive a reply, if you have not already done so”. The letter said that the army had not changed its view that Mr Plumtree had been properly discharged.

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32. That letter was followed by a letter from Mr Plumtree dated 3 November 1997 which referred to the Act and asked for a copy of all his army records. In particular, Mr Plumtree said that reenlistment documents had been missing from the materials forwarded to him in 1992 and 1994. (Mr Plumtree’s file includes documents suggesting reengagement in October/November 1966 but nothing has ever been produced recording the reenlistment in early 1966 which is the subject of Mr Plumtree’s request in this letter) Mr Plumtree’s letter describes itself as his third attempt at obtaining all of his records.

33.  Mr Plumtree also wrote to the Privacy Commissioner on 3 November 1997. The letter refers to a document written to the Wellington office of the Privacy Commission on 19 September 1997 “... regarding the fabrication of my Army records and other matters to this date I have not received a reply”.

34.  There is a significant letter in this chain which is dated 26 November 1997. The army wrote to Mr Plumtree, in response to his letter of 3 November 1997. The focus of the army’s letter had to do with Mr Plumtree’s allegation that he re‑enlisted in early 1966 (we note that the words enlistment, reenlistment and engagement, reengagement were used interchangeably by the parties). The claims were investigated and a number of points were made by the army all of which reflect the material that was on Mr Plumtree’s personal file. The letter did, however, contain a sentence which later became an important part of Mr Plumtree’s case, namely a statement that Mr Plumtree was emplaned to travel to Vietnam on 11 January 1967. The letter recorded that a complete copy of Mr Plumtree’s personal file had been sent on 27 May 1992 and that a complete copy of Mr Plumtree’s medical records had been sent to him on 25 May 1994. The letter recorded that the personal file was made available to the office of the New Zealand Ombudsman in August 1994 along with the medical records. The letter concluded, “... your recent enquiries regarding the procedural correctness of your discharge from the army have been exhaustively researched and answered. Your enquiries have been answered in the form of responses from the Army, the New Zealand Defence Force, the Minister of Defence, and the Office of the Governor General ... I hope that this reply has answered all of your concerns, therefore concluding Army’s correspondence with you regarding your military service.”

35. The next letter is dated 5 October 1998. It was written on behalf of the Privacy Commissioner to Mr Plumtree in response to a letter he had written in September 1998 (we do not have a copy of this letter). Amongst other the 5 October letter advised Mr Plumtree as to the effect of Principle 7 of the Act, but noted that “... you have not requested that the New Zealand Defence Force correct your Army records, including your vaccination records and therefore, the Commissioner is unable to investigate this aspect of your complaint.”

36. In view of the submissions subsequently made by the Privacy Commissioner at the hearing, the next letter is of some importance and needs to be described in detail. On 8 October 1998 Mr Plumtree wrote to Col. Seymour. His letter is headed with reference to Principles 6 and 7 of the Act. Mr Plumtree began the letter by explaining his points of disagreement with army records. The letter sets out his recollection of what occurred and complains that what appears to be his signature on forms of reengagement dated in October and November 1966 are both forgeries, Mr Plumtree noted the army’s concession concerning what he believed to be the correct date on which he was emplaned for service in South Vietnam. He then referred to the army’s suggestion that he applied to have his reengagement reduced while he was in Vietnam. With specific reference to Principle 6 of the Act, he asked the army to supply the documents referred to. The letter then concluded in the following terms:

“By request under Principle 6 of the Privacy Act of 1993, I seek full documentation from the Defence Force pertaining to the alleged return from Vietnam medical board alleged by Minister Max Bradford to have occurred on the 18’h day of April 1968.

“By request under Principle 7 of the Privacy Act of 1993, 1 request my vaccination records be corrected. That all vaccinations received while in service be correctly listed and shown properly.

“By request under Principle 6 of the Privacy Act of 1993, 1 request the Defence Force copy to me proper documentation setting out all vaccinations received for service in South Vietnam.”

37. Apparently something was sent to the Privacy Commissioner at or about that time because there is in the evidence a letter dated 16 October 1998 from the Privacy Commissioner. In that letter the Privacy Commissioner took the view that there were no matters requiring investigation by his office at the time, and recorded his decision to exercise his discretion under s 71(2) of the Act to discontinue the investigation of Mr Plumtree’s complaint.

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38. The army’s response to Mr Plumtree’s letter of 8 October 1998 was dated 19 October 1998. It was signed by Col. Seymour, and was in the following terms:

I acknowledge your letter dated 8 October 1998 concerning your release from the New Zealand Army. Our records show that we have in the past sent you full copies of both your personal army file and medical records. There is nothing we can add to them ... further, there is nothing more that we can do for you on the issues your raise. I note that the Minister of Defence advises you, in a letter dated 15 October 1998, of a similar response. Just as the Minister of Defence considers the matter closed, so do I.”

39. A copy of this letter was sent to the Privacy Commissioner. On 24 December  1998 the Privacy Commissioner wrote to Mr Plumtree. That letter is concerned with Mr Plumtree’s allegation that the records held by the army  were not honest or truthful, and that they contained forgeries. The letter records that the army had advised the Privacy Commissioner that a copy of all medical records was provided to Mr Plumtree including his original vaccination records, and that the Privacy Commissioner’s understanding was that Mr Plumtree received his personal files in 1992. For reasons set out in the letter, the Privacy Commissioner thought it unlikely that he would consider that an investigation concerning refusal by the army to correct the vaccination records to be appropriate. The Privacy Commissioner did, however, draw attention to Principle 7 and the possibility that the army might attach a statement of correction to the file that it held. The letter indicates that the Commissioner would consider commencing an investigation if the army were not to attach such a statement, or if it were to fail to respond to Mr Plumtree’s request.

40. The evidence does not disclose what took place between December 1998 and June 2001. It may be that Mr Plumtree had again taken his concerns up with the Ombudsman at that time. On 5 June 200 1, however, Mr Plumtree wrote to Col Seymour saying that he had again complained to the Privacy Commissioner regarding his earlier request that his army vaccination records be corrected. His letter includes the following:

“... I am making a second request under Principle 6 and 7 of the Privacy Act of New Zealand. Requesting A7 Army Defence Force for a statement of correction to be attached to my army personnel file. I ask that army fully investigates unit 161 BTY Papakura camp vaccination records; particularly vaccination records February/March 1966, and pleases also the earlier Papakura camp hospital vaccination records ... I request under Principle 6 and 7 of the Privacy Act of New Zealand, that I be accorded a full and proper record of all vaccinations received thus far throughout my service.”

41. The Privacy Commissioner wrote to Mr Plumtree on 15 June 2001 in terms:

 

“As you may recall, this matter has been the subject of a previous investigation by the Privacy Commissioner. You made a complaint in 1997 concerning a number of matters including that documents you had received from the Army were inaccurate. You advised the Commissioner that information held about you by the Army was untruthful and dishonest. Deborah Marshall, Manager investigations at the time, advised you that the Army had informed the Privacy Commissioner you had received all the information it holds about you, including your vaccination records. Mrs. Marshall advised you that should you consider the in information held about you by the Army to be inaccurate, you may make a request to the Army for a statement of correction to be attached to the file the Army holds about you.

“You do not appear to have raised any new matters in your recent correspondence to the Privacy Commissioner. Neither have you provided information concerning making a request to the Army for your vaccination records to be corrected.

“In the circumstances, there does not appear to be a matter which the Privacy Commissioner may investigate. The file concerning your complaint will therefore remain closed.

42. This letter was followed by a further letter on 24 July 2001 in which the Privacy Commissioner formally recorded his decision to discontinue the investigation of the complaint pursuant to the discretion granted him under s 71(2) of the Act. The Privacy Commissioner indicated that he had also decided not to refer the matter to the Proceedings Commissioner, so that Mr Plumtree was free to bring the present proceedings by himself.

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43. This proceeding was then commenced by Mr Plumtree on 27 July 2001. The claim was received by the army on or about 10 August 2001. The date is significant because it is at about that time that Lt. Col. Taylor assumed responsibility for dealing with the matter on behalf of the army. It needs to be recorded that, whatever criticisms may be levelled at the army, no criticism whatsoever can be made of Lt. Col. Taylor’s efforts in dealing with this file.  Indeed, but for Lt. Col. Taylor’s careful and conscientious review of the file, and his willingness to ‘start again’, such information as has subsequently come to light might never have been found.

44. In September 2001 there was a meeting in Rotorua attended by Mr Plumtree and a barrister, Mr Birks, as well as by Ms Laracy and Lt. Col. Taylor for the army. Prior. to attending that meeting Lt.. Col. Taylor perused all of the personal files carefully. In doing so, he opened the mobilisation pack on the file. The mobilisation pack is an envelope, the purpose of which is to contain documents and administrative items required by a service member for deployment on operations. In Mr Plumtree’s mobilisation pack Lt. Col. Taylor found his identity tags, an identity card, spare identity photographs, his pay book and his Certificate of Vaccination.

45. At the hearing the army accepted that the mobilisation pack had not been opened before then, and that Mr Plumtree had never been given any of the information contained within it before it was opened by Lt. Col. Taylor.

 

46. There was some dispute about what was shown to Mr Plumtree at the Rotorua meeting. The parties agree that he was at least shown his Certificate of Vaccination (which he would not have seen before then) as well as copies of two letters. The first is dated 9 March 1967 and appears to be signed by Mr Plumtree. In it he asks to have his engagement reduced by three months. Mr Plumtree said that he had never seen the document before, and that the signature purporting to be his was a forgery. In contrast the army’s position was that there is no reason to believe that the signature is forged, and there is no reason to suppose that a copy of the letter was not sent along with all of the other items on Mr Plumtree’s personal file in 1992.

47. The second letter is dated 11 March 1967 and appears to be signed by Lt. Col. Smith. It also deals with Mr Plumtree’s reengagement. Mr Plumtree said that he had never seen this document before the meeting in Rotorua. The army’s position was, again, that there was no reason to suppose that it had not been copied with all of the other material on Mr Plumtree’s personal file in 1992.

48. Mr Plumtree said that he was also shown a fourth document in Rotorua. He said the document was one which bore the signature of Lt. Col. Smith as well as one purporting to be his (Mr Plumtree’s) signature. Lt. Col. Taylor, on the other hand, gave evidence that he had no note or recollection of either having seen such a document or having shown it to Mr Plumtree.

49. On 25 September 2001 Lt. Col. Taylor sent Mr Plumtree a copy of his Certificate of Vaccination. By letter dated 19 October 2001 he reported progress in respect of various other researches he had agreed to undertake, including research at National Archives, On 31 October 2001 Lt. Col. Taylor sent a further letter reporting on the researches together with further documents and extracts from documents that related to Mr Plumtree (but with references to other individuals deleted).

 

50. As will be apparent from the foregoing chronology, it was not until after this proceeding was commenced that the army first opened the mobilisation pack on Mr Plumtree’s file. It contained important information in relation to his vaccinations, which had been the subject of several of Mr Plumtree’s requests. We are bound to say that it seems remarkable that this envelope was not opened before September 2001, notwithstanding all of Mr Plumtree’s correspondence to the Ombudsmen, Ministers of the Crown and the Privacy Commissioner.

 

51. We were shown the mobilisation pack during the course of the hearing.. It is a manila envelope which is secured at the top with a pin. It was on Mr Plumtree’s personal files. We have no doubt that the items contained within the mobilisation pack were all readily capable of being retrieved by the army. The army accepts this, and concedes that here has been a breach of Principle 6 because Mr Plumtree was not given access to his Certificate of Vaccination prior to the meeting in September 2001 in Rotorua.

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E                      ARE THE RECORDS ACCURATE?

 

52. It will be apparent from the chronology that there is disagreement between Mr Plumtree and the army as to the accuracy of the personal information held by the army about Mr Plumtree. We turn to deal with those issues. The purpose of the analysis is to compare the information held by the army about Mr Plumtree with the standard of accuracy set out in Principle 7(2):

“An agency that holds personal information shall, if so requested by the individual concerned, take such steps (if any) as are, in the circumstances, reasonable to ensure that, having regard to the purposes for which the information may lawfully be used, the information is accurate, tip to date, complete and not misleading. “

53. All of the information at issue was collected by the army over thirty years ago. It was not suggested by Mr Plumtree or by the Privacy Commissioner that the information has any particular use now save as an historical record of what occurred. Mr Plumtree did not argue that the information might affect, or had ever affected, any entitlement to any benefit he might otherwise have had. Indeed it was not suggested that anyone save Mr Plumtree was concerned about the accuracy of the information.

54. The army did not press the point that, whatever the truth of Mr Plumtree’s complaints, the information on its files nonetheless meets the standard required by Principle 7(2) ‑ either because the circumstances do not now warrant any steps to correct the information, or because the information is sufficiently accurate having regard to any purpose for which it can now lawfully be used. The point was made in a footnote to the written submission filed for the army, but it was not urged upon us. We think the army was right to deal with the issue in that way and to focus on the substance of the documents. But we agree with the submission that Principle 7(2) does not require an agency to accede to every request for correction. The Principle recognises that the obligation to correct is to be assessed according to the use to which the information may lawfully be put, and what is reasonable in the circumstances.

55. In the present case, for example, one of Mr Plumtree’s requests for correction relates to records of the date on which he boarded the flight that took him to Singapore en route to service in Vietnam. Mr Plumtree says the date was 11 January 1967, the army records have the date as 22 January 1967. The assertion of an error by Mr Plumtree does not in itself oblige the army to change its records. It must also be obvious that, in the absence of any suggestion that anything turns on the accuracy of the record, there is nothing in Principle 7(2) that would have obliged the army to conduct a full scale inquiry to determine conclusively whether its records are right or wrong.

56. Instead Principle 7(3) provides that:
“Where an agency that holds personal information is not willing to correct that information in accordance with a request by the individual concerned, the agency shall, if so requested by the individual concerned, take such steps (if any) as are reasonable in the circumstances to attach to the information, in such a manner that it will always be read with the information, any statement provided by that individual of the correction sought.”

 

57. We return to deal with Principle 7(3) later in this decision. In the meantime we deal with Mr Plumtree’s argument in respect of the records under the following headings:

• Documents which contain what Mr Plumtree said were errors requiring correction;

·        Documents relating to Mr Plumtree’s service in Vietnam;

·        Documents which Mr Plumtree says contain forgeries of his signature;

·        The missing document.

 

Documents Containing Incorrect Information

58.  We deal first with the documents which Mr Plumtree says contain incorrect information, but in respect of which he has not gone so far as to assert fabrication or forgery. The documents in this category are:

·        Mr Plumtree’s Certificate of Vaccination;

·        His Unit Personal Record Card.

Certificate of Vaccination

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59. With respect to the Certificate of Vaccination, the document shows that three vaccinations were administered in 1963. Mr Plumtree says that cannot be correct since he did not join the army until March 1964.

60. The relevant page of the certificate shows entries in respect of vaccinations on 5 May 1964 and 17 July 1964. There are then three records for vaccinations dated 1963, followed by further vaccinations shown as having been administered in 1965 and later. The signature of the physician who administered the vaccines in 1964, ‘1963’ and in March and April 1965 appears to be that of the same person.

61. Since the date of Mr Plumtree’s first engagement in the army is not in issue we agree with Mr Plumtree that, in the absence of any other explanation, the certificate appears to be wrong in respect of vaccinations shown to have been administered in 1963.

62. Reference to the sequence of entries in the certificate suggests that the entry ‘1963’ was most likely a mistake by the person filling in the form. It was suggested during the hearing that the information about vaccinations in 1963 might be correct, and that it was obtained by the army after Mr Plumtree enlisted and added to the certificate when provided ‑ thus explaining why it appears out of chronological order. But that is no more than speculation. It was not suggested that the files contain any record that the army physician was given information from any other